Torture Admission by US at UN Treaty Body Review by Dr Cynthia Banham, Centre for International Governance and Justice, ANU. Reprinted by permission of Regarding Rights

The United States official left the UN Committee Against Torture in no doubt when he appeared before it last month: the US used torture as a matter of policy after 11 September 2001.[1]

‘[W]e do not claim to be perfect,’ Assistant Secretary of State for Democracy, Human Rights and Labor, Tom Malinowski, told the Committee. ‘A little more than ten years ago, our government was employing interrogation methods that, as President Obama has said, any fair-minded person would believe were torture.’[2] In the same breath, Malinowski also noted that torture not only devastates its victims, but harms people and countries that use it and is employed to coerce false confessions – or to inflict suffering for its own sake.

The US’s appearance before the Committee Against Torture was its first under the Obama Administration. It was a large, high-level delegation, deferential and contrite. Ambassador Keith Harper, US Representative to the Human Rights Council, described the dialogue with the Committee as being ‘part of a valuable process to push all nations, including the United States, to do better’.

The appearance was, in some ways, surprising for the frank and open way in which the delegation acknowledged not only the record of the previous Bush Administration on torture, but also the damning feedback of the military, police and intelligence agents as to the harms caused by the torture policies that they had to observe and implement. The US’s previous appearance before the Committee Against Torture was in 2006. Back then, American officials adopted a ‘no comment’ policy when questioned about the Bush Administration’s secret, CIA-run detention facilities to which the Red Cross was denied access and where it is known detainees were tortured.[3] (President Barack Obama closed any remaining CIA detention centres when he took office, in 2009).

The November appearance, on the other hand, was marked by moments of self-reflection and national soul-baring. It also provided long-awaited clarification on America’s interpretation of important aspects of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which I will come to. In one introspective comment to the Committee, Malinowski noted that the US’s experiences showed that torture is ‘counter-productive’. He said:

So many of our senior military, law-enforcement, intelligence officials have said over the last many years that abusive interrogation techniques were more harmful than helpful in the fight against terrorism, and that any useful information that may have been obtained this way could have been uncovered by lawful means.

Malinowski also credited the US’s various institutions of democratic accountability – the media, civil society, the courts, Congress and the presidential nomination and election processes – for bringing about the renunciation of the post-11 September torture policies. When the torture issue arose in the US, he said, ‘our democratic institutions worked as designed’. Indeed, Ambassador Harper earlier singled out the presence of civil society in the hearing room as being ‘particularly important to us’. (The Committee received nearly 70 submissions from civil society for the US review – all are availableon the OHCHR’s treaties website.)

What the Committee and civil society organisations were particularly interested in, however, was the Obama Administration’s interpretation of two specific – and previously contested – aspects of the Convention Against Torture, namely:

Does the treaty apply extraterritorially to US agents and officials beyond the US’s borders? and

Does it apply in times of armed conflict?

Harold Koh, a legal adviser to the State Department from 2009 to 2013, penned a‘Memo to the President’ published in Politico Magazine ahead of the US’s appearance before the Committee, where he told Obama that his answers to these questions would ‘help define [his] legacy as president’.

Appearing before the Committee, the US responded to the questions with a somewhat qualified ‘yes’.

It accepted that the Convention Against Torture extends to certain areas beyond the sovereign territory of state parties, specifically to ‘all places that the State Party controls as a governmental authority.’ The US delegation told the UN Committee it had concluded that America currently exercises such control at Guantánamo Bay and with respect to US-registered ships and aircraft. On the second question, the delegation said that, although the law of armed conflict is the controlling body of law with respect to the conduct of hostilities and the protection of war victims, “a time of war does not suspend operation of the Convention Against Torture, which continues to apply even when a State is engaged in armed conflict”.

Both positions were welcomed by the Committee in its Concluding Observations. They were alsowelcomed by Koh: ‘make no mistake,’ he declared, ‘America’s unequivocal yes to the universal application of the Torture ban marks a watershed moment. The question now is how to build upon it. Three legal myths perpetuated by the Bush Administration had been resolutely debunked, Koh continued: that there are legal gaps in the coverage of the Convention Against Torture, that some provisions only apply in US territory, and that the treaty does not apply in wartime settings.

Others, however, have responded more cautiously.Human Rights Watch has raised concernsabout the Obama’s Administration’s language limiting extraterritoriality, as did Human Rights Firstand someinternational law academics. The scepticism of some human rights NGOs and legal commentators comes down to the US’s use of the term ‘controls as a governmental authority’ with respect to when, and under what circumstances, the Convention Against Torture has extraterritorial application.

The Convention Against Torture attributes to each State Party various obligations to prevent acts of torture and cruel, inhuman or degrading treatment or punishment occurring in ‘any territory under its jurisdiction’. The Bush Administration argued these provisions were geographically limited to US territory. While the Obama Administration has now rejected this interpretation, its view that ‘any territory under its jurisdiction’ signifies places that the State ‘controls as a government authority’ arguably leaves the US some wriggle room. For example, the US Naval base at Guantánamo Bay is said by the Obama Administration to satisfy the ‘controls as a government authority’ criteria, but what about the former CIA-run ‘black sites’ where detainees were held in Afghanistan, Thailand, Poland and elsewhere?

[3] Committee Against Torture, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention – Conclusions and Recommendations of the Committee Against Torture – United States of America, 36th Sess, UN Doc CAT/C/USA/CO/2 (25 July 2006), 4.

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Dr Cynthia Banhamis a Post-Doctoral Fellow at the Australian National University (ANU), in the Regulatory Institutions Network’s Centre for International Governance and Justice. Her PhD, which she completed at the ANU, was entitled “The Responses of Liberal Democracies to the Torture of Citizens: A Comparative Study”. She is a former foreign affairs and defence correspondent for The Sydney Morning Herald, and spent almost a decade working in the Canberra Press Gallery. Cynthia also has a Masters of International Affairs from the ANU and was a Visiting Fellow/Journalist in Residence in the ANU’s International Relations Department. She is a lawyer, and previously worked as a solicitor.

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